Wednesday, February 23, 2005

Oh God... O-Week

Well, it's O-Week. That's why I've been very busy.

Since I'm so busy, I'll just post an extract from a paper my father, a PhD student in the School of Law at Flinders University, on the right to strike. I'd post my article for Activist, the Victorian Young Labor Left Journal, but I left it at work.

Remember to join up with the Melbourne University Bocce Club, a club dedicated to playing boccee and drinking wine. The first Bocce event will be Week 4.

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The Right to Politically Strike?

by Chris White, School of Law Flinders University

The right to strike on political issues is a controversial contested industrial relations and labour law issue. Governments and employers use labour law against the political protests of striking unionists. Controlling industrial action by sanctions (almost) extinguishes the right to strike. When political protest includes industrial action, such strikes are declared unlawful. When the issue of ‘political’ is clarified, the argument for the justification of the right to politically protest and the right to strike can be developed. International labour law principles and International Labour Organisation (ILO) jurisprudence on political strikes are adopted.

Are restrictions justified against strikes on political issues or should there be greater freedoms for Australian workers and their unions to assert without risk of penal sanctions the right to politically strike? Forms of the right to political protest with industrial action could be considered for protection. The justifications may inform policy debates.

The ILO has not given support to politically motivated industrial action. ‘The term 'political strike' is the term associated with illegality and disapprobation. The reason is that 'the political strikes' are viewed as disruptive of democratic processes’. ‘Purely political strikes’ are coercive and prohibited.

Strikes protesting against government industrial, social and economic policy are nevertheless legitimate. The economic and social interests of workers encompass a wide range of legitimate issues that are interrelated to government as well as employer policies and usually enmeshed in politics.

There is a range of conduct where a ‘political strike is that which is aimed at deposing the government, reducing its credibility, dictating the policies it should follow, or merely seeking to influence the policy formation process.’

But it is different with strikes on ideological grounds, less directly connected to workers’ self interest. Here the right to strike is linked to contemporary understandings of democracy, human rights of political participation as citizens, and the right to politically protest as an exercise of civil liberties. Such argued for political freedoms are increasingly under threat. After the new Senate in July 2005, the Howard government should almost extinguish the right to strike. Should unions have the political right to protest and strike against such workplace laws?

So-called ‘political’ strikes by public sector unions are legally protected when during enterprise bargaining on wages and conditions. Public servants, teachers, university workers, nurses and those not in essential services (narrowly interpreted) striking as a last resort are justified; so long as public health and welfare is not adversely affected.

Trade unions in the past have played a crucial role in the fight for democracy. Should in Australia industrial bans defending democracy be unlawful and unions subject to penalties? Transnational corporations threaten government with moving capital overseas. Should workers have the parallel freedom to strike to influence government policies?

What about more general political strikes against government policies? The ILO concludes that ‘protest strikes’ aimed at influencing government policy do merit legal protection without sanctions. In the Argentina case, the Congress of Argentine Workers organised a strike that included national employment policy, job stability, free education and a public health system. The government declared the strike illegal and said that the strike was ‘clearly of a political nature, since it did not involve the defence of particular or specific interests of workers in a given activity, but was the expression of pure and simple opposition to the social policy of the Government’. The ILO Governing Body Committee on Freedom of Association (CFA) reminded the government that ‘trade union organisations should have the opportunity to call for protest strikes particularly with a view to exercising criticism of the social and economic policy of the governments’. Clearly such a form of political ‘protest strikes’ are not to be declared unlawful on ILO principles. Political ‘protest strikes’ are strikes designed merely to draw attention to the extent or depth of feeling against particular government law or policy while ‘coercive strikes’ are ‘designed to force the government to change that policy.’ ‘Protest strikes’ at least, but not ‘coercive strikes’, should be permissible in a democratic society.

But is there a point to the argument that coercive political strikes against governments should be unlawful? Obviously so. However, the political right wing and corporate leaders support certain political strikes, on occasions. There are protest strikes against governments that are not democratic e.g. strikes in Zimbabwe; that are white racist (South Africa); fascist, communist (Poland and the Solidarity strikes) or that are authoritarian Nigerian or left wing, Venezuela. All over the world at any one time governments implement their reactionary economic and social politics and workers and unions use the political strike in opposition to the policies and the repression of political protests (see www.labourstart.org/).

Democratic participation at the workplace and in political policy making is important justifications, e.g. the October 16th National strike on University and Government decision making.

The scope of the right strike is broader when based on employees having a voice, not only over their own working conditions, but when they are opposed to the way an enterprise is being run or government policy impacting on the enterprise decision making.

It has been demonstrated that the right to politically protest is broadly accepted throughout the liberal democratic world recognised as an important civil and human right. Political protests historically have been evolving as a civil and political right and linked to freedom of speech, freedom of association and the right to free assembly.

In the 1970s, the NSW Builders Labourers Federation embarked upon 'Green bans' industrial action to protect the environment by refusing to take jobs constructing a luxury complex on undeveloped bushland, on the Greenbelt Sydney, respecting community opposition to this project. These bans for environmental and community protection were justified politically by the militant Communist union leadership. This form of industrial action could be seen as a means by which to ‘allow the values of the ‘life world’ to permeate the capitalist system. The Sydney ‘green bans’, were where constitutional democratic procedures have not decided how to develop Sydney before the labourers stepped in; profit making builders had. The green bans may be understood as taking one step further a union goal traditionally applied to setting wages and conditions of employment; substituting a conscious group decision for a market determination.

Political strikes were taken for reasons of conscience. An example of this is the (in)famous Waterside Workers Federation 1938 ban on the shipment of pig-iron to Japan in protest against war preparations, where the Communist waterfront union leader Healy asserted ‘the right of the individual to refuse to participate in any action towards which he (sic) may have conscientious objection.’ Waterfront unionists ‘refusal to participate in the business of munitions manufacturing was similar to their later refusal to assist the Dutch to reassert control in the East Indies. They claimed that they retained their personal rights and prerogatives, one of which was to aid persons in a struggle for freedom.’

Is it arguable that Australia’s restrictions on the right to strike on political issues are unfair? Should workers be able to exercise protest power with industrial action in a democracy? The right to politically protest by strike action could be re-evaluated: 1. in a democracy, political strikes do occur and the State’s legal responses should not be to suppress; 2 overcomes unfairness between the interests of labour and capital, rebalanced to meet international obligations; and 3 engages in a reform debate for the protection of the right to politically protest and the right to strike of benefit to industrial relations and the community.